United States v. Fager
811 F.3d 381
10th Cir.2016Background
- Feb. 10, 2014 traffic stop at ~8:00 p.m. in a high-crime area; Deputy Dobler approached passenger side of car with driver (Fager) and passenger (Gregory Walls).
- Officer observed watery eyes, soft speech, and an unopened beer in console; passenger repeatedly leaned forward, obstructing view of driver.
- IDs run: Walls had several outstanding arrest warrants (officers did not know the bases); Dobler called for backup; two officers then approached and asked Fager to step out.
- Dobler asked Fager to sit in patrol car during consent search of the vehicle; before searching, Dobler stated he wanted to pat Fager down for officer safety; the frisk revealed a firearm in Fager’s waistband and Fager was arrested.
- Fager was indicted under 18 U.S.C. § 922(g) (felon in possession) and moved to suppress the firearm; district court denied the motion; Fager entered a conditional guilty plea and appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the pat-down lawful under Terry (reasonable suspicion that Fager was armed and dangerous)? | Government: officer safety concerns (would turn back to search car, high-crime area, suspicious passenger, outstanding warrants) justified reasonable suspicion to frisk. | Fager: no specific suspicion he was armed or dangerous; officer testimony admitted Fager did nothing to cause fear. | Court: frisk reasonable under totality of circumstances; officers had sufficient objective reasonable suspicion. |
| Do McRae and Manjarrez wrongly allow automatic frisks when consent to search a car is given? | Government: McRae/Manjarrez apply Terry; they show how officer safety concerns can translate into reasonable suspicion to frisk. | Fager: those cases improperly permit automatic frisks upon consent to search absent suspicion. | Court: rejects overruling; McRae/Manjarrez are consistent applications of Terry (not automatic frisks) and remain controlling. |
| Does presence of a backup officer negate the need for a frisk? | Government: even with a second officer, vulnerability during vehicle search, passenger with warrants, and potential coordinated attack justify a frisk. | Fager: two officers were present when consent was given, so the danger was diminished and frisk was unnecessary. | Court: presence of backup did not eliminate objective risk; totality of circumstances sustained reasonable suspicion. |
| Should courts require Miranda-style notice that consent to search implies authority to frisk? | Government: no such notice necessary; frisk authority depends on objective safety concerns, not consent alone. | Fager: proposed rule would require explicit notice tying consent to search to a frisk. | Court: rejects new Miranda-like requirement; frisk authority remains fact-specific and based on objective reasonable suspicion. |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (1968) (temporary pat-down for weapons requires reasonable suspicion an individual is armed and dangerous)
- United States v. McRae, 81 F.3d 1528 (10th Cir. 1996) (frisk upheld where officer would turn his back to search car and driver had violent criminal history)
- United States v. Manjarrez, 348 F.3d 881 (10th Cir. 2003) (frisk permissible when officer must turn back to search vehicle even absent known criminal history)
- United States v. Garcia, 751 F.3d 1139 (10th Cir. 2014) (totality-of-circumstances multi-factor reasonable-suspicion analysis; McRae/Manjarrez apply as safety-based analyses)
- United States v. Rice, 483 F.3d 1079 (10th Cir. 2007) (factors that can inform reasonable suspicion such as time, place, passenger behavior)
- United States v. Dennison, 410 F.3d 1203 (10th Cir. 2005) (inference of common enterprise between driver and passenger can inform search/suspicion)
- United States v. Holt, 264 F.3d 1215 (10th Cir. 2001) (en banc) (traffic stops are especially dangerous and officer safety is a significant concern)